Updates: Daniel’s Law goes into effect and Civil Service reverses West New York cannabis decision
NJ State PBA Legal Corner
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
Daniel’s Law, which was enacted in 2020, amends the Open Public Records Act (OPRA) and other laws and prohibits individuals, as well
as state and local governments, from posting or publishing certain personal and private information. The information includes the home address or unpublished telephone number of any active or retired law enforcement officers or the spouses or children of the law enforcement officers.
It was amended approximately one year ago to provide a registration procedure for covered individuals to use to submit redaction requests if they do not want their personal and private information issued or published. The law goes into full effect this month.
Under Daniel’s Law, a covered person includes both state and federal judges, active and retired law enforcement officers or prosecutors, as well as any immediate family members living in the same household as one of these covered individuals. Under the procedure adopted in
the 2022 amendments, the covered person is required to submit a request to the Office of Information Privacy (OIP) for a redaction, which must then be approved by OIP. Once it is approved by OIP, a public entity has 30 days to redact this information from their websites.
The OIP established a portal which became operative last year where those who are covered under Daniel’s Law may submit requests for redactions. As on January, each public entity must have a designated individual who must redact information within 30 days of the posting of an approved request for redaction. This is similar to the process under OPRA where each public entity must have a specific individual assigned to respond to OPRA requests. Now, each public entity must have a specific individual, called a “redactor,” assigned to review and implement approved redaction requests.
Officers who wish to obtain approval of redaction requests must use the portal which, can be found on the following website of the OIP, which is a division of the Department of Community Affairs: https://www.nj.gov/dca/oip/. At the website, there is a button which will provide access to the Daniel’s Law portal for registration.
Right to use cannabis remains cloudy
Our article in the December issue regarding off-duty usage of cannabis by law enforcement officers summarized a recent decision from the Office of Administrative Law regarding a West New York officer who was fired for testing positive for cannabis. The ALJ wrote a comprehensive decision addressing the provisions of the new law. The ALJ concluded that law enforcement officers are now permitted to utilize cannabis while off duty and that a positive drug test without confirmatory proof of impairment on the job cannot form the basis of discipline. As a result, she ordered reinstatement with full backpay.
The town appealed and, in December, the Civil Service Commission reversed that determination and remanded it back to the ALJ. Its decision, however, may be limited to the peculiar facts of the case. In particular, the commission noted that the random drug test took place on April 4, 2022, which was approximately two weeks before cannabis purchases became legal in New Jersey. The commission reasoned that although cannabis usage itself was decriminalized earlier, the statutory scheme and attorney general guidance assume that the cannabis was purchased legally at regulated facilities.
Since authorized distribution centers did not commence sales until April 21 – two weeks after the random test was administered to the officer – the commission reasoned that the cannabis the officer ingested may not have been obtained legally. Accordingly, the commission remanded the matter to the ALJ for a hearing on how the officer obtained the cannabis and, if not obtained legally, whether that alone warranted discipline.
Even a negative decision by the ALJ or the commission, however, would appear to be limited to the unique facts of the case. It may be a one-off decision because of the timing of the test and when the officer used the cannabis. We will, however, continue to monitor the situation to provide updates.
We are also aware of a recent resolution issued by Camden County providing that any law enforcement officer testing positive for cannabis is subject to discipline, up to and including termination. Camden County is aware of the attorney general guidance which prohibits such discipline but thus far has refused to rescind its resolution. We are monitoring the situation closely and on behalf of the NJ State PBA will join in any challenge which might be brought if the county’s resolution is enforced against any law enforcement officer. If any Locals or members are aware of other public agencies which have passed similar measures, please notify the NJSPBA immediately.